CONSUMER DISPUTES REDRESSAL COMMISSION – X
GOVERNMENT OF N.C.T. OF DELHI
Udyog Sadan, C – 22 & 23, Institutional Area
(Behind Qutub Hotel)
New Delhi – 110016
Case No.214/2018
SH. AMAN RAWAT, S/O SH. M.S. RAWAT
R/O 268, POCKET I, MAYUR VIHAR, PHASEII,
DELHI-110091 …....COMPLAINANT
- M/s RICHFEEL HEALTH & BEAUTY PVT. LTD.
THROUGH ITS DIRECTOR
M-77, M BLOCK MARKET, NEAR DOMINOS,
GREATER KAILASH PART-II,
NEW DELHI. ………RESPONDENT No. 1
ALSO AT:-
SCF-26, 2ND FLOOR, SECTOR 14, HUDA MARKET
NEAR WOLLEN SHOWROOM, OLD DELHI ROAD,
GURGRAM, HARYANA.
ALSO AT:-
554-D, 1ST FLOOR
FRIENDS C. H. EDUCATION CHARITY TRUST,
L.B.S. MARGT, MULUND (WEST)
MUMBAI- 400080, MAHARASHTRA
- M/S. BAJAJ FINSERV
UNIT NO. 206-208, 2ND FLOOR, H-3, K.M. TRADE TOWER
SECTOR 14, MODIPON VIHAR
KOSHAMBI, GHAZIABAD-201010 (UP) .….RESPONDENT No. 2
Date of Institution-26/09/2018.
Date of Order-28/04/2022.
O R D E R
MONIKA SRIVASTAVA– President
The complainant has filed the present complaint requesting for a refund of Rs.70,000 with interest at the rate of 18% per annum w.e.f 25.03.2017 along with damages of Rs.50,000 and litigation cost of Rs.11,000 against the OP No. one who offers hair transplant services whereas OP No. 2 is the financier.
It is the case of the complainant that he approached the OP No.1 for hair transplant services and one Dr. Deepanshi physically examined the complainant and found him fit for surgery and stated that the date will be given for the surgery and the place where the surgery will be held would be informed to the complainant. It is stated that no other requirement was ever told to the complainant regarding medication or test. It is further stated that after 6 months, the complainant was informed that he should approach their clinic at M-77, M block market near Domino's Greater Kailash Part II, New Delhi. Accordingly, the complainant approached the said clinic where the doctor examined him again and asked for some blood test. The blood tests were conducted and it was informed to the complainant that the report is negative for surgery. It is stated that apart from the blood test it was also informed to the complainant that after 6 months of receiving the payment, medication by oral allopathic medicine is required for one month. It is the case of the complainant that these pre-requirements of the surgery i.e blood test and premedication were never informed to him on 25.03.2017 when he was first examined before receiving the consideration amount for the said treatment.
It is the case of the complainant that since he has taken loan from OP No. 2 for the amount to be paid to OP No. 1 and he has been regularly paying the EMI to OP No. 2 and for a very long period of time no treatment was carried out he feels cheated by OP No. 1 and states that there is deficiency in services provided by this OP. It is further stated that the complainant had requested OP No. one to refund his money of Rs.70,000 but OP No. 1 has not done so. The complainant has further stated that since he has been paying interest for availing the financial services from OP No. 2 OP No. 1 is liable to pay the interest which he has paid to OP No. 2.
It is the case of the complainant that on account of the above cheating and fraud committed by OP No. 1 he has suffered a lot of mental pain, agony and harassment and therefore OP No. 1 is liable to refund his amount of Rs.70,000 along with damages to the tune of Rs.50,000. It is also stated that in reply to his legal notice which was issued on 30.01.2018 OP No. 1 has offered the hair transplantation but the complainant is not interested in getting the transplantation done from OP No. 1 as he has lost faith in them.
On the other hand, OP No.1 has taken a preliminary objection in his reply regarding the maintainability of the complaint due to territorial jurisdiction. It is stated by him that the head office of OP No. one is situated in Mumbai and therefore the present complaint ought to have been filed in Mumbai as also the consent form signed by the complainant gives exclusive jurisdiction to Mumbai courts. It is also stated that the complaint is untenable in law as there is no deficiency of service or unfair trade practices on the part of OP and the present complaint is an abuse of the process of law.
It is stated that the complaint has admitted in his letter dated 21.04.2018 that he has refused to go ahead with the hair transplant surgery and he postponed the surgery for personal reasons and therefore no service was provided to him. It is also stated that when the complainant, later on, presented himself for the hair transplant on examination of the scalp, it was found not fit to undergo the procedure and where was therefore recommended some medicines after which the transplant could have taken place. the complainant thereafter decided not to go ahead with the head transplant and sought refund of the payment made by him therefore, he cannot allege any deficiency services by OP No. 1 when he has on his own accord refused to avail the hair transplant service services.
It is stated by the OP that the complainant approached the OP on 25.03.2017 for consultation regarding hair transplantation services. The consultation was duly provided and he was diagnosed with AGA i.e Endogenetic Alopecia (male pattern thinning).
It is further stated that the complainant was explained the other alternative ways of addressing hair loss i.e wearing a hairpiece, taking medication or undergoing hair transplant or doing nothing at all. The complainant, of his own free will and mission and after satisfying himself with all aspects decided to go ahead with the hair transplant procedure and sought the payment details. The complainant was informed about the cost of the entire procedure as also about the no refund policy of the OP. Since the complainant wished to pay in instalments, he was informed of the finance facility being provided by OP No. 2. It is also stated that the complainant duly signed the consent form wherein it was categorically acknowledged and consented to the following
“2. terms of payment
the management will not refund any amount for services rendered, whether availed in full or not by the client.”
Declaration:
“I further undertake that the amount paid is nonrefundable as well as non-transferable”.
It is stated that the complainant was duly examined by the doctor of OP No. 1 and all the relevant information was recorded in the health questionnaire and surgical form which was executed by the complainant. The copy of the health questionnaire and surgical form is annexed as Annexure OP1/2(colly).
The complainant was also provided with a list of investigations required to be undergone by him before the procedure to ascertain if he is fit for the hair transplant surgery. The complainant signed and acknowledged and agreed to the following
“I hereby agree that the above investigations are mandatory for me before I undergo hair transplantation procedure as told by the doctor. I agree to submit the above reports including fit for surgery certificate maximum a week before the plant date of surgery else my surgery date shall be postponed by Richfeel Hair Forever Clinic.”
The complainant was also explained and provided with a list of important pre-procedure instructions which were mandatory to conduct the surgery which included the following instruction
“If you suffer with skin conditions of any sort such as psoriasis or eczema this must be treated prior to your procedure or it will not be possible to carry out the procedure. for further advice on this please speak with your consultant.”
A Copy of the investigation prescribed to the complainant along with the pre-procedure instructions is annexed as Annexure OP 1/3.
It is further stated that the complainant was explained all the steps in hair transplantation procedure in detail and all his queries were also answered by OP No. 1 during consultation availed by him. The hair transplant treatment was scheduled for 16.06.2017 however, the complainant cancelled his appointment due to illness of his father. The said appointment was then rescheduled to 18.08.2017 at the clinic of the OP No. 1 at GK Part II however, the complainant without any prior intimation to OP No. 1 choose to remain absent on the said date and the hair transplant treatment could not be carried out. The hair transplant was then scheduled on 13.10.2017 and the complainant reported to GK II Delhi clinic however upon conducting a pre-procedure routine check-up and examination of the scalp of the complainant the surgeon detected dermatitis due to which the surgeon had to cancel the procedure as the hair transplant treatment would not be successful when the patient is suffering from dermatitis of the scalp. The surgeon then prescribed medication for treating dermatitis and advised the complainant to visit the clinic after 15 days for a review. It is stated that cancellation of the surgery as well as prescription of the medication by OP No. 1 was for treatment of dermatitis (which is a form of eczema) was undertaken in terms of the pre-procedure instructions which specifically provided that skin conditions such as eczema must be treated prior to the procedure or it will not be possible to carry out the procedure. It is stated that dermatitis was not detected in the scalp of the complainant during inspection conducted on 25.03.2017 and therefore his hair transplant treatment was scheduled on 16.06.2017. however, after conducting examination of scalp on 13.10. 2017 i.e Dermatitis was detected in the scalp of the complainant which had to be treated with medication before the hair transplantation treatment could have been carried out. The complainant’s surgery was therefore cancelled and was prescribed medication for two weeks and he was asked to come back for a review. It is stated that the complainant is estopped from claiming that he was never informed about the procedure of transplant and the policy of the company as he availed due consultation and after resolving his queries opted for the hair transplantation procedure, of his own volition.
It is further stated that the complainant did not revert to OP No. 1 for review and instead started asking for refund of his payment despite being aware of the non-refund policy of OP No1. It is also stated that OP No. 1in the spirit of resolving customer issues amicably replied to notice dated 19.03.2018 and offered the complainant to avail the services as booked by him and he was assured that the best service as per extant international standards would be provided to him.
OP 2 was proceeded ex-parte vide order dated 21.02.2019. Rejoinder, evidence affidavit and written submissions of both the parties are on record. This Commission has carefully gone through the entire material on record and also heard the oral submissions.
This Commission concludes that the contention of the OP regarding this Commission not having the territorial jurisdiction cannot be upheld. In a catena of judgments it has been held that the place where the cause of action has arisen that place would have the jurisdiction to entertain the complaint.
As per the Hon’ble Supreme Court in Thirumurugan Coop. Agricultural Credit Society v. M. Lalitha [Thirumurugan Coop. Agricultural Credit Society v. M. Lalitha, (2004) 1 SCC 305]
“11. From the Statement of Objects and Reasons and the scheme of the 1986 Act, it is apparent that the main objective of the Act is to provide for better protection of the interest of the consumer and for that purpose to provide for better redressal, mechanism through which cheaper, easier, expeditious and effective redressal is made available to consumers. To serve the purpose of the Act, various quasi-judicial forums are set up at the district, State and national level with wide range of powers vested in them. These quasi- judicial forums, observing the principles of natural justice, are empowered to give relief of a specific nature and to award, wherever appropriate, compensation to the consumers and to impose penalties for non-compliance with their orders.
As per Section 3 of the Act, as already stated above, the provisions of the Act shall be in addition to and not in derogation of any other provisions of any other law for the time being in force. Having due regard to the scheme of the Act and purpose sought to be achieved to protect the interest of the consumers better, the provisions are to be interpreted broadly, positively and purposefully in the context of the present case to give meaning to additional/extended jurisdiction, particularly when Section 3 seeks to provide remedy under the Act in addition to other remedies provided under other Acts unless there is a clear bar”
This Commission is of the view that no case of deficiency in service is made out against OP No.1 as OP No.1 has not denied treatment of hair transplant to the complainant at any point of time. For reasons compelling or otherwise, the complainant could not take treatment from OP No.1, for this, the OP cannot be held liable for deficient services. At the same time, it is important to appreciate that OP No.1 ought not to keep the amount provided to them by the complainant for the services which he could not/did not undertake although the OP had a policy of not refunding the money deposited. Over the years various Commissions have held that such contracts are unfair and therefore, this Commission is of the view that ends of justice would be met if OP No.1 is directed to return Rs. 60,000/- to the complainant out of Rs.70,000/- paid by him. For the consultations undertaken by the complainant OP No.1 has retained this money for a long period of time and a sum of Rs.10,000/- is sufficient.
Therefore, OP No. 1 is directed to refund a sum of Rs.60,000/- to the complainant within a period of three months from the date of this order failing which OP No.1 would be liable to pay Rs. 60,000/- with interest @ 7% p.a from the date of this order till realisation. No order as to costs. There is no prayer against OP No.2 therefore no direction is given against OP No.2.
The file be consigned to record room after providing copy of the order to the parties. Order be uploaded on the website.
(Dr. RAJENDER DHAR) (RASHMI BANSAL) (MONIKA SRIVASTAVA)
MEMBER MEMBER PRESIDENT
